“If, therefore, we are going to sin, we must sin quietly.”Footnote 1
Introduction
This essay explores the Third World reparations campaign which has over time shed light on the perpetuation of imperialism and its legacies,Footnote 2 focusing on torture, castration, rape, and other atrocities committed by the British colonial government against the Mau Mau veterans during the state of emergency (1952–1960).Footnote 3 This essay interrogates intertemporal legal doctrine which, under its first limb, entrenches the principle that historical actions must be judged by the laws of their time, not modern standards.Footnote 4 This enables states to evade accountability for past injustices by claiming they were “legal” when committed, thereby obstructing opportunities for reparations.Footnote 5 I will focus on the litigation claims brought before the English courts, specifically the Ndiku Mutua and Others v. The Foreign and Commonwealth Office case, which has been hailed as a success since in the two preliminary rulings, the High Court rejected the British government’s bid to strike out the claims on the grounds that the Kenyan government held liability for the atrocities and denied the application of UK Limitation Act (1980) respectively.Footnote 6 In my view, although Justice McCombe issued two seemingly favorable rulings, his reasoning on state succession suggests he would have ultimately decided against the claimants on the merits.Footnote 7 Furthermore, the out-of-court settlement that followed these two rulings, as the matter did not proceed to merits, was not inclusive of all the veterans and their descendants as shown through successive cases.Footnote 8 In short, this former colonial power was able to use legal sophistry to deny liability.Footnote 9
In this essay, I use the term legal sophistry to refer to the formalist deployment of legal doctrines not as neutral technicality, but as a conscious manipulation of legal form that obscures rather than resolves questions of historical justice.Footnote 10 This mode of reasoning functions within a broader “colonial racial aphasia” as discussed by Tendayi Achiume in the print issue—a discursive and legal forgetting of racialized violence—that sanitizes imperial wrongdoing through supposedly neutral legal interpretation.Footnote 11
Decolonizing Intertemporal Law Through State Succession in the Ndiku Mutua Case
Most discourses on intertemporal law begin with the dictates of Max Huber in the Island of Palmas (Netherlands, U.S.) case, stating that “a judicial fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time such a dispute in regard to it arises or falls to be settled.”Footnote 12 Less discussed, however, are the deep colonial roots of the subject matter of Island of Palmas (Miangas, Indonesia), which dealt with the acquisition of title of colonized territory.Footnote 13 The United States argued legal title through transfer from the Spaniards who first discovered the Island, while the Netherlands argued acquisition of title through treaties signed with native princes.Footnote 14 Judge Huber held that the Netherlands had proved sovereignty over this colonized territory through continuous and effective occupation.Footnote 15
Some scholars agree with Huber, arguing against the retrospective imposition of the present legal standards on acts long ago.Footnote 16 In contrast, other scholars—from the perspective that recognizes the imperial origins of positivist international law, argue for a decolonization of the intertemporal law doctrine invoking its second limb, which states that “the existence of a right … shall follow the conditions required by the evolution of law.” Footnote 17 They also press the need to research the “polycentric legal order” that existed prior to the establishment of the European international law that affirmed the malevolent actions by colonialists and slavers.Footnote 18 From this latter viewpoint, I dissect the state succession ruling by Justice McCombe below.
On June 23, 2009, the Kenya Human Rights Commission on behalf of five Mau Mau veterans—Ndiku Mutua, Jane Muthoni Mara, Wambugu Nyingi, Paulo Nzili, and Susan Ciong’ombe Ngondi—involved the Leigh Day law firm to institute tort claims against the British Foreign and Commonwealth Office for the bodily injury violations during the emergency period.Footnote 19 In the first ruling, the Office argued that according to English law, the tortious liabilities of acts done directly or indirectly in Kenya by British politicians, civil servants, diplomats, and soldiers, relating to the Mau Mau uprising, were acts of the colonial government of Kenya and not the UK government,Footnote 20 implicitly creating the idea of a divisible crown discussed below.
Further, the Office added that these liabilities seamlessly transferred first to the newly independent monarchy in 1963, then later to the independent Kenyan republic in 1964.Footnote 21 It relied on Section 26 of the Constitution of Kenya (Amendment) Act 1964, which stipulates transfer of rights, obligations and liabilities from the UK government to the independent republic.Footnote 22 However, Professor Githu Muigai, an expert witness on Kenyan constitutional law, argued that the section under the heading of “Land, Property and Contracts” did not include tortious liabilities.Footnote 23 Justice McCombe took no regard to this position and affirmed the transfer of liabilities to the independent republic. He added that any such “remedy laid in the hands of an independent Kenya—a result which is hardly repugnant to the concept of a free and independent state.”Footnote 24
The Office’s arguments present a “split personality” between the UK government and the colonial government in order to evade liability.Footnote 25 Justice McCombe held that because the liabilities transferred to the independent Kenyan state, the colonial government does not have primary liability. Consequently, the UK government will not have secondary (or vicarious) liability.Footnote 26 This legal architecture created to evade liability is not only contrary to international standards but also the established UK principle that “the United Kingdom and its dependent territories within Her Majesty’s dominions form one realm having one undivided Crown,” affirmed in R v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Bancoult.Footnote 27
The “theoretical foundations of doctrines relating to the succession of liabilities are concerned with the ‘continuity’ of liability” and not the denial of it.Footnote 28 It was in 1963, through the proposition of Manfred Lachs, then-chairman of the ILC Sub-Committee on Succession of States and Governments, that succession of torts was brought forth, but due to disagreement, it was excluded in the scope of state succession study.Footnote 29 It is irrelevant to discuss whether these tortious liabilities transferred from the colonial government to the Kenyan republic when the sovereign (the UK government) that has liability is presently identifiable.Footnote 30
The claimants argued that under customary international law, tortious liability devolves to the predecessor state upon independence.Footnote 31 The claimants adduced state practice from France concerning Algeria that held the public service of France liable for the use of force in quelling insurrections prior to independence.Footnote 32 Justice McCombe vehemently disagreed, holding that, first, since independence instruments govern this succession of liabilities, customary international law, which ranks lower than UK law, was not applicable.Footnote 33 Second, he added that UK state practice always “disclaimed responsibility for the liabilities” of the colonial government.Footnote 34 He agreed with the respondent’s argument that the claimants reference to France’s state practice was not a good comparison since that scenario involved signing agreements uniquely connected to Algeria’s independence; hence the claimants did not establish an “extensive and uniform rule” of customary international law.Footnote 35
Proper Reparations for All the Mau Mau Veterans
British Foreign Secretary William Hague highlighted the “grief” and “pain” that the UK felt toward the victims of the “events” during the state of emergency.Footnote 36 For context, these atrocities described as “events” included torture in detention camps and villages, castration, and rape during the British counter-insurgency to the Mau Mau uprising.Footnote 37 He added that the British “recognize” that Kenyans were subjected to “torture and other forms of ill-treatment” and “sincerely regret” the atrocities as they were against human dignity.Footnote 38 The language employed here by Hague is calculated to avoid accepting legal liability.Footnote 39 Hague outrightly expressed the British government’s sincere regret but not its sincere apology for these crimes. It would seem that the government understood an express apology—as opposed to admission of regret—would result in legal liability actionable in court.Footnote 40
The UK settlement to the Mau Mau Veterans Association “will likely prove insufficient to mend the social and psychic scars of colonial violence in Kenya, which have themselves long since inflicted new, post-colonial wounds.”Footnote 41 Most of the surviving Mau Mau veterans live in poverty and incur enormous medical expenses due to the torture they experienced during the emergency.Footnote 42 Since the present effects of the injury caused are determinable, they lay the basis of remedies in the form of full reparation.
In answering the question of what amounts to proper reparations, Andreas von Arnauld advocates against full reparations. This stems from his argument that ethical-legal principles embedded in the past positivist international law could assert illegality of the atrocities hence liability that would affirm the Third World reparations campaign.Footnote 43 This line of argument relies on the same positivist international law principles that allowed the perpetuation of colonial harms to interpret intertemporal law.Footnote 44 By doing so, it proposes a middle ground under the guise of legal neutrality that seeks to balance the interests of both the oppressor and oppressed as opposed to fully safeguarding the interests of the oppressed.Footnote 45 Ironically, he argues for less than full reparations, while the antithetical “Western Law of Reparations” insists on full compensation.Footnote 46
As was affirmed by the Africa Union Accra Proclamation on Reparations of 2023, fulfillment of reparations is a legal as much as it is a moral imperative.Footnote 47 Full reparations as restitution, compensation, and satisfaction, wherever appropriate,Footnote 48 should be advocated for in all third world reparation campaigns, including for the Mau Mau.
Non-inclusion of All Mau Mau Veterans in the Settlement
Full reparations ought to include all the victims ensuring the system takes into account the view of affected persons.Footnote 49 Aside from the litigation claims, the UK government’s settlement failed to provide proper reparations. The KES 300,000 (£2,600) per claimant given to the 5,288 veteransFootnote 50 excluded living survivors and their descendants, evidenced through the subsequent cases involving these victims such as the widow of Dedan Kimathi.Footnote 51
The subsequent cases brought after Ndiku Mutua by 4,122 Mau Mau veterans who were not involved in the settlement showcase consistent use of legal sophistry to abnegate liability. In the Test Claim 34 (TC34) judgment, Justice Stewart denied the claims due to the limitation of actions claiming lack of evidence and that 2012 second Mutua ruling (which denied the use of limitation of actions),Footnote 52 cannot be applied in the matter before him.Footnote 53
This judgment shows a “discursive interplay repeating the pattern of dissent and oppression seen in the uprising and the British counter-insurgency.”Footnote 54 Although Justice Stewart used the applicable case law in applying limitation of actions, the net effect was to “immunize the state” from the Mau Mau Veteran Association claims.Footnote 55 This is contrary to the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation that bars domestic statutes of limitation.Footnote 56
Conclusion
The Mau Mau reparations campaign has been heralded as successful and a good example for future claims. However, as shown in both the initial rulings and subsequent decisions before the British courts, Western powers have continued to rely on legal sophistry—such as Justice McCombe’s attribution of liability to the Kenyan government through state succession—to deflect responsibility for colonial atrocities. Further, the settlement as the aftermath of the two rulings excluded living victims of the counter-insurgency. Therefore, there is a need decolonize intertemporal law, to ensure proper reparations for victims that is adequate,Footnote 57 and that will pave way for creative,Footnote 58 and informed methods to assert the legal obligation to pay reparations for the entire Third World.
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